Shotwell v. Local Lodges Nos. 59, 140, 273, 323, 594, 670, 805 and 908, Broth. of Locomotive Firemen and Enginemen

• Decision Date: 22 July 1957
• Docket Number: No. 18004,18004
• Citation: 319 P.2d 484,136 Colo. 428
• Parties: W. P. SHOTWELL, Plaintiff in Error, v. LOCAL LODGES NOS. 59, 140, 273, 323, 594, 670, 805 and 908, BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, all unincorporated Societies et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 484

319 P.2d 484

136 Colo. 428

W. P. SHOTWELL, Plaintiff in Error, v. LOCAL LODGES NOS. 59, 140, 273, 323, 594, 670, 805 and 908 BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN all unincorporated Societies et al Defendants in Error.

No. 18004.

Supreme Court of Colorado, En Banc.

July 22, 1957.

Rehearing Denied Jan. 13, 1958.

Thomas K. Hudson and Robert E. Holland, Denver, for plaintiff in error.

Alden T. Hill and Ralph H. Coyte, Ft. Collins, and Harold C. Heiss, Cleveland, Ohio, for defendants in error A. J. Chipman, M. B. Porter, C. R. McDonald, V. L. Runnells, F. B. Wright, J. H. Schoening, W. A. Weaver, L. G. Middleton, C. M. Groshart, J. P. O'Hara and Mathew Plautz.

HALL, Justice.

Plaintiff in error, plaintiff in the trial court claiming to be acting in his own behalf and also in behalf of all other members of local 859 Brotherhood of Locomotive Firemen and Enginemen, sought through his second amended complaint to obtain a declaratory judgment defining the seniority rights of himself and other members of Lodge No. 859, former employees of The Denver and Salt Lake Railway Company (that company having been merged with the Denver and Rio Grande Western Railroad Company in 1947) as against claimed seniority rights of members of other lodges whose members are and have been employees of the Denver and Rio Grande Western Railroad. Plaintiff alleges that:

'immediately upon the merger of the two companies and subsequent thereto * * * various contracts and agreements were entered into affecting the seniority rights of the Denver and Salt Lake Firemen and Enginemen, said contracts and agreements having been voted upon by the Denver and Rio Grande Western Railroad Company firemen and enginemen and the Denver and Salt Lake firemen and enginemen.

'That by and through said voting and contractual and Brotherhood devices and manipulations * * * members of Lodge No. 859 * * * have been relegated to a junior position regarding seniority rights over the trackage of the former Denver and Salt Lake Railroad Company.'

Plaintiff further alleges that he has exhausted all rights granted to him by the Constitution of the Grand Lodge of the Brotherhood of Locomotive Firemen and Enginemen to have seniority rights of members of Lodge No. 859 determined superior to the rights of firemen and enginemen employed by the Denver and Rio Grande Western Railroad Company on the trackage of the former Denver and Salt Lake Railroad Company, and that said Grand Lodge had capriciously and arbitrarily denied plaintiff's claim.

Defendant, Denver and Rio Grande Western Railroad Company, though served with summons and amended complaint only, did not appear or answer. Other defendants who were served filed their motion to dismiss on the ground that the second amended complaint fails to state a claim upon which relief can be granted.

This motion was sustained and plaintiff's second amended complaint dismissed. Plaintiff is here by writ of error contending the judgment of dismissal is error.

We think the judgment of the trial court was correct. Plaintiff's complaint does not allege any facts upon which a finding or judgment, declaratory or otherwise, could be founded. It does not set forth the various contracts, constitution, by-laws, devices or manipulations upon which he relies and by which he contends that his rights have been impaired. He does not even plead the legal effect of such documents or devices. It appears that plaintiff's rights, whatever they may be, arise out of his membership in the Brotherhood. The complaint does not allege the nature or extent of those rights or anything done by the Brotherhood or its officers in derogation thereof. There is no allegation stating the nature or extent of plaintiff's injuries or the damages resulting from the acts of defendants or whether they are past, present or prospective. It appears that the membership of all the lodges involved, including the plaintiff and other members of Local 859 voted on the contracts and seniority question and adopted the measures of which plaintiff now complains. He asserts nothing that would authorize or justify the courts in overriding the proceedings of a majority of the membership of the organization involved, taken pursuant to their rules and regulations. Counsel for plaintiff take the position that a complaint for a declaratory judgment need not state a claim upon which relief could be granted; that such complaint is

'not subject to a motion to dismiss for failure to state a claim upon which relief could be granted.' This Court has held to the contrary.

In Gabriel v. Board of Regents of the University of Colorado, 83 Colo. 582, 267 P. 407, the trial court sustained a demurrer to plaintiff's complaint on the 'grounds of insufficient facts and want of jurisdiction.' This demurrer was equivalent to motion to dismiss under R.C.P.Colo. The judgment of the trial court in sustaining the demurrer was affirmed.

In Champion v. City of Montrose, 128 Colo. 474, 263 P.2d 434, 436, plaintiff sought a declaratory judgment. Defendant city filed a motion to dismiss which the trial court did not rule upon. In reversing the trial court we said:

'The questions presented here are not within the purview of the Declaratory Judgment Act, and, therefore, the trial court erred in not granting defendant city's motion to dismiss the complaint.'

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